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In the United States Court of Appeals For the Seventh Circuit
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 1:19-CR-00669-1, 2, 4 — Edmond E. Chang , Judge .
ARGUED SEPTEMBER 5, 2024 — DECIDED AUGUST 20, 2025
Before EASTERBROOK, KIRSCH, and KOLAR, Circuit Judges .
KIRSCH, Circuit Judge . Gregg Smith, Michael Nowak, and Christopher Jordan were precious metals futures traders who manipulated the market through an unlawful practice called ę , meaning they placed deceptive orders they intended to cancel to push the market price a certain direction. At trial, they were all convicted of various crimes in connection with this practice. They appeal their convictions on Page 2multiple grounds. Finding none of their challenges persuaǰȱ ȱĜȱȱȱǯ
Gregg Smith, Michael Nowak, and Christopher Jordan once traded precious metals futures contracts on commodities ¡ȱ ȱ ¢ȱ ȱ ȱ ȱ ¡ȱ Group (CME). They each employed a fraudulent scheme, ȱȱęǰ to game the system and manipulate the prices of the precious metals futures they traded.
ęȱȱȱȱȱȱ of commodities ȱǯȱ ȱȱȱȱȱ¢ȱȱȬ ȱȱ¢ȱȱȱȱ¢ȱȱȱ -upon price on an agreed-upon future date. Commodities futures traders use ȱ ȱ ȱ ȱ ȱ ¡ȱ ȱ ȱ -operated exchanges. These traders ȱȱȱ¢ , ȱěȱ to sell, ȱȱȱȱȱȱȱ ¡ȱȱȱ ęȱȱȱǯȱ ȱȱ ¡ȱȱ¢ǰȱȱ while some traders employ computer algorithms to place orders, others enter their orders manually, as Smith, Nowak, and Jordan did. ¡ȱȱȱȱȱȱȱȬ ǰȱȱȱęȱȱȱȱǰȱ¢ȱȱȱȱȱ executed.
The price of futures contracts is ȱ¢ȱ¢ȱȱ demand: the price will increase if there is more demand than supply for a product, and vice versa. But a fundamental assumption on CME exchanges is that every order represents a legitimate, ȱęȱȱȱ ȱȱ ȱ ȱ . Each ȱȱȱ ¡ȱȱȱȱȱ¢ȱ conveying an intent to participate in it at a particular price.
Page 3Today, ¡ȱ ȱ ¢ȱ ȱ ǰȱ ȱ ȱ Smith, Nowak, and Jordan were traders, it displayed only the ȱȱȱȱȱȱȱěȱȱ ny time. ȱȱ ȱ¢ȱȱ ȱȱȱȱěȱȱȱȱ smaller orders will, ¡ȱ s traders ȱȱȱȱ ȱȱȱȱȱȱȱ¢ȱȱ -called iceȱǯȱ ȱȱ ¢ǰȱȱȱȱȱȱȬ ceal the true size of their order. Although these features were designed to mitigate the impact that large orders would have on the market price, they paved the way for fraudulent schemes to manipulate the market— ¢ȱę .
ȱęȱȱ large orders that he does not intend to execute, driving the price in a ȱȱȬ tion ¢ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱȱȱ¢ȱȱǯȱ This typically involves four steps. First, the trader places an order, often an ȱǰȱȱ he genuinely intends to trade. Second, the ȱȱȱȱȱȱȱȱȱȱȱȱȬ ket. The trader never intends to trade this order; rather, it is designed to push the ȱȱȱȱęȱȱȱȬ mate order. For instance, if a trader wants ȱ¢ȱȱȱȱ ȱȱǰȱȱ ȱȱȱȱȱȱȱȱ ȱȱ (or a series of smaller sell orders at descending prices) to push the market down. Third, the market reacts to the illusion of ȱ¢ȱ ȱ ¢ȱ ȱ ȱ ǰȱ ȱ ȱ trader to execute the genuine order at his desired price. ǰȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ęǯ
CME rules ȱȱȱę . In particular, ȱ ȱ ŚřŘȱ ȱ ȱ ȱ manipulating or attempting to manipulate 'prices of exchange futures orPage 4 ȱȄDzȱ¢ȱȱĴȱȱ¢ȱȃ¢ȱ ȱǰȱȱȱęȱȱȄDzȱ and purȱȱȱȱěȱȱȱȱȱȃ¡ȱ futures or options contracts or any underlying commodities ȱȱȱȱȱȱĴȱȱȱȱ the market or creating a condition in which prices do not or will not r ĚȱȱȱǯȄȱ ¢ǰȱȱȬ ants’ employers have ȱȱęǰȱȱ expressly and implicitly as a form of market manipulation.
Nowak and Smith worked at JPMorgan from 2008 to 2016. Nowak was a managing director who ran the precious metals ȱǰȱĴȱȱȱ ȱ ȱ ȱȱ Ȭ don. Smith was an executive director and sat next to Nowak ȱȱ ȱ ȱĜǯȱ He joined JPMorgan after it acquired Bear Stearns in 2008. Jordan worked as a precious metals ȱȱȱ ȱ ȱĜȱ ȱŘŖŖŜȱȱŘŖŖşǯȱ After JPMorgan terminated him in 2009, he moved to Credit Suisse, where he worked from March to August 2010.
On multiple occasions, Smith, Nowak, and Jordan each placed orders ȱȱȱĴȱȱę . That conduct eventually led the government to indict them for varȱ ę -related crimes. Smith and Nowak were each ȱ ȱ Ĵȱ ȱ ǰȱ ŝȱ ǯ ǯ ǯȱ § 13(a)(2); wire fraud, 18 U.S.C. § 1343; commodities fraud, 18 U.S.C. § 1348(1); and violating the antięȱȱȱ the Dodd-Frank Act ǰȱŝȱ ǯ ǯ ǯȱȗȗ 6c(a)(5)(C) & 13(a)(2). Jordan was charged with wire fraud, 18 U.S.C. § 1343. All three were charged with conspiracy ǰȱȱȱ ȱ .
Page 5Smith and Nowak were tried together. They did not meaningfully contest that their trading activity ȱȱ -ȱĴȱȱęǯȱ ǰȱ¢ȱȱȱȱȬ ȱ ȱ¢ȱȱ ȱȱȱȱȱȱ government could not prove the requisite intent. During a three-week trial, t ȱ ȱȱȱȬ dence to the contrary. Below, we summarize the evidence relevant to this appeal.
Kumar Venkataraman, ȱ ęȱ ¡ǰ explained how Smith’s and Nowak’s ȱĴȱȱȱęȱȱ ȱ ȱȱ¢ȱęȱĴǯ In a set of 100 trading episodes ęǰȱ Ȃȱȱȱȱȱęȱȱ (meaning ȱ ȱ ȱ ȱ ęǼȱ ȱ ŖǯŗŞƖǰȱ Ȭ ȱȱȱŝşǯŗŗƖȱęȱȱȱȱȱǯȱ Ȃȱęȱ ȱ ȱDZȱŖǯŘŘƖȱȱȱȱȱȱşŖǯŗŗƖȱȱ his genuine orders. ȱȂȱȱȱ ȱ ȱĴ , as well. De ȱȱ¢ȱęȱȱȱ the spoof orders, ȱęȱȱ Smith and Nowak used this strategy “again and again.” He concluded that Smith and Nowak’s trading strategy was “inconsistent with a design” to ęȱ the genuine orders and was instead “designed” to “push the price” of the market and execute the order on the other side. There was no “economically rational” reason for their Ĵȱȱ ¢ȱ ȱ ȱ ȱ ȱ ȱ , Venkataraman said. ȱȱȱȱȱȱȱȱ genuine, they achieved the intended “shock to the market” and successfully moved the price on the other side.
The government also presented the testimony of CME investigator Brian Wika and three of Nowak and Smith’s former coworkers who Ĵȱ ȱ ęȱ ȱ ȱ ȱPage 6 authorities. John Edmonds sat next to Smith and Nowak at Ȃȱ ȱ ȱĜǯȱ ȱęȱȱȱ ȱ Smith and Nowak spoof regularly, at least several times per day, and that they in fact taught him how to spoof. According ȱ ǰȱ ȱȱȱȱȱ¢ȱȱȱ “size moves the market” and would complain “[t]hey’re fuckȱĴȱȄȱ ȱȱ he placed with the intent to cancel were executed. After a meeting where JPMorgan ȱĜȱ ȱȱȱȱęȱȱ regulators were looking into it, Edmonds heard Smith say to another coworker ǰȱȃ ȱȱȱǯȄȱ Edmonds also ȱȱȱȱěȱ¢ȱȱȱȱ ęȱȱ they ȱȱ ȱęȱĴǯȱ ȱ on his own experience at JPMorgan, he was unaware of any legitimate nonęȱ¡ȱȱȱǯ
ȱ £ȱ ȱȃȱ¢ȱȄȱ ȱ ǰȱ m ȱȱȱȱǯȱ £ȱĴȱȱȱȱ ȱęȱȱ deceive other market participants. ȱęȱ that he witnessed Smith spoof “all the time” using the same strategy. Trunz sent a chat to another JPMorgan salesperson ȱ ȱ ȱȃȱȱȱȱȱ¢ȱȱȱȱ ěǰȄȱ ȱ ȱ ȱ ȱ ȱ ȃ¢Ȅȱ ȱ ȃ ȱ ȱ glasses against the screen' when his spoof order was executed. ȱȱ ęȱ that Nowak spoofed while they ȱ ȃȱ ȱ Ȅȱ ȱ ǯȱ And while coaching Trunz ahead of a compliance review, Nowak once warned, ȃ ǰȱ¢ȱȱ ȱǰȱ ȱȱȱǯȄ
Corey Flaum sat along ȱ ȱȱ ȱ ȱȱȱ ȱȱ¢ȱ ȱȱŘŖŖŞǯ Flaum also confessed to ę ȱęȱ that he saw Smith spoof at least several Page 7times per week. ȱęȱȱ Ȃȱȱȱ ȱȃȱȄȱȱȱ ȱęȱĴǯ
At various points, Edmonds, Trunz, and Flaum each deęȱęȱȱȱ and ȱȱȱ and impact on the market to explain why they spoofed. They ȱȱ ȱ ȱ ȱ ęȱ ȱ and opined that Smith and Nowak lacked an intent to trade ȱȱȱęȱȱȱ . The district court ěȱȱȱȱ¢ȱȱȱȱ ȱ ȱȱ ȱȱȱȱǰȱȱȱěȱȱȱȱȱ ȱ ȱ ȱ ȱ ȱ ȱ . Smith and Nowak declined the instruction. The government also Ĵȱȱ ȱ ȱ ȱ ȱ ȱ ȱ coworkers discussing the legitimate orders they sought to execute, ȱ ¢ȱ ȱ showing that they simultaneously placed and quickly canceled large orders on the other side of the market.
ȱȱ ȱ¡ȱ ȱęȱǰȱ ȱ traders typically achieve it, how CME investigators identify ǰȱȱ ¢ȱ ȱȱȱǯȱ ȱȱȱȱȬ dentials, Wika stated that he had worked in CME’s investigations group for 14 year ȱȱȱȱȱȱȱȱȱ ǯȱ ȱęȱȱȱ ȱȱȱ ȱ after it received a complaint from a market participant. When discussing the results of his investigation, Wika said that Smith’s high cancellation rates were ȃȱȱęȱ activity—indicative of lack of intent to trade those orders.” He prepared an investigative report concluding that Smith had ȱ ȱ ¢ȱ ęȱ ȱ ȱ ȱ Ȭ ȱ¡ȱȱ Ȃȱęȱǯȱ Over the deȂȱ ǰȱ ȱ ȱ Ĵȱ ȱ ȱ ȱPage 8 ȱȱȱȱȱȱ ȱ ȱȱ ȱ 803(6).
ȱȱȱȱ ǰȱȱ¢ȱȱȱȱ was deadlocked. Although the defendants sought a mistrial, the court granted the government’s request for the standard supplemental jury instruction under United States v. Silvern , ŚŞŚȱ ǯŘȱŞŝşȱǻŝȱ ǯȱŗşŝřǼȱǻȱǼǯȱ ȱ ȱȱȬ ȱȱȱ ȱ ȱĴȱǰȱȱȱ ȱȱȱȱȃȱ¢ȱȱěȱȱȱ a verdict” and discuss their “ ěȱ ȱȱȱǰȄȱ ȱȱȱȱȱȃȱǽǾȱȱȱ ȱȱ ȱȱěȱ of evidence.” The next day, the jury ȱȱȱ¡ȱȃȱȱȱȱ¢ȱȱ juror” that suggested that the juror had “made early decisions ȱȱȱȱȱȄȱȱȱȱȂȱ opening statements and “saw everything through that lense [sic].” The government asked the court to dismiss the juror. Instead, the court reminded the jury “that the lawyers’ statements and arguments are not evidence. If what a lawyer said ȱ ěȱ ȱ ȱ ȱ ȱ ¢ȱ ȱ ǰȱ ȱ Ȭ dence is what counts.” The next day, the jury found Smith and ȱ¢ȱȱȱȱȱȱĴȱ them of the conspiracy charges. ȱȱȱĴȱȱȱ ȱ ǰȱȱȱȱȱȱ .
The government tried Jordan separately and, following Smith and Nowak's trial, dropped the conspiracy counts against him. ǰȱ ȱ ȱ ǰȱ ¢ȱ Ĵ ed that he spoofed. Instead, his defense was that he spoofed without the criminal intent necessary to support a conviction for wire ȱěȱȱęȱǯ
Page 9FBI A ȱ ȱ ȱ ęȱ ȱ ȱ ǯȱ Agent Luca had investigated Jordan and interviewed him in ŘŖŗŞǯȱ ȱȱ ǰȱ ȱĴȱ as a trader ȱȱȱȃȱȱȱȱȱȱȱȱȱ and larger nonȱȱȱȱȱȱȱȱȱ in which he intended to cancel” and acknowledged that this Ĵȱ ȱȱ ȱęǯ He explained that he spoofed 'to mislead the market, to outperform the algorithms, and to make—and ȱȱ ȱ le ę s for his ǯȄȱ The government characterized this interview as a confession. However, Jordan also told Agent Luca that he “did not think what he was doing was wrong.” Jordan sought to admit this statement under a hearsay exception commonly ȱȱȱȱȱǰȱ ǯȱ ǯȱ ǯȱŗŖŜǰȱȱȱ court denied his motion.
To demonstrate Jordan’s state of mind, the government introduced ȱȱȱȱȱŘŖŗŖȱȱȱ the Commodity Futures Trading Commission. In stark contrast to his interview with Agent Luca, Jordan swore during the deposition that he never placed an order that he didn’t intend to execute, and “would only cancel something if [he] changed [his] mind or if it was put in error.” He further stated ȱȱȱȱȱȱȃȱȱȱȱĚȬ ing the price” of the commodity exchange.
ȱȱȱȱȱȱ ȂȱȱȱȬ ¢ȱȱǰȱ ȱ ǰȱȱę . Middleton said ȱ ȱȱȱ¢ȱȱȱȱȱę — meaning they must ȃȱȱȱȱȱ¢ȱȱȱȱ particular price or quantity'-to maintain the integrity of their markets. She acknowledged, however, that the word ęȱȱȱȱȱȱ¡ȱȱ ȱ ȱŚřŘ and that Page 10such language would have ę that the rule ȱ ę . Representatives from JPMorgan and Credit Suisse ¢ȱęȱȱęȱ ȱȱȱȱȬ ȱȱȱ ȱ ȱ ȱȱȱǰȱȱȱ ¢ȱȱȱ¡¢ȱȱę either. Jordan sought to challenge these statements with post-2010 compliance policies and CME documents that, unlike the policies in place ȱȱ ȱȱ¢ǰȱ¡¢ȱę ed ęȱȱȱ ȱȱ¢ǯ The district court excluded these ¡ȱȱ ȱ ȱȱ ȱŚŖřǰȱǰȱęȱ that they posed a risk of confusing the jury and erroneously injecting a mistake of law defense into the case.
The court also rejected Jordan’s request for a jury instrucȱȱȱǯȱ ę¢ǰȱȱȱȱȱȱ if he acted in good faith, “then he lacked the intent to defraud ȱȱȱȱěȱȱ ȱǯȄȱ ȱȱȱ ȱȱ¢ȱȱ ȱȱ ¢ȱȬ gue that he lacked an intent to defraud and the instruction posed a similar risk of misleading the jurors into thinking that ȱȱ ȱ ȱȱȱǯȱ
The court did, however, instruct the jury on the mental state necessary to show an intent to defraud. The jury was instructed that Jordan must have acted knowingly, which the ȱęȱȱȱȱ 'aware of the nature of his conǯȄȱ ȱǰȱȱ¢ȱȱęȱ ȱȱęǰȱȱȱȱȱȱȃȱęȬ tion of ‘knowingly’ … does not mean that the defendant must ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ law.” The jury returned a guilty verdict, and the court denied Jordan’s ȱȱĴȱȱȱ ȱ .
Page 11Smith, Nowak, and Jordan all appeal the denial of their motions ȱĴȱ a new trial. They also challenge several of the district judge’s rulings at trial. We take their arguments in turn.
All three defendants argue that their fraud convictions cannot ȱȱęȱȱ involve a misrepreȱ an essential element ȱȱȱȱȱ contracts. We review this threshold legal challenge de novo. United States v. Rivers ǰȱ ŗŖŞȱ ǯŚȱ şŝřǰȱ şŝŞȱ ǻŝȱ ǯȱ ŘŖŘŚǼȱ ǻ de novo review applies to “legal questions wrapped up in chalȱ ȱ ȱ Ĝ¢ȱ ȱ ȱ ȄǼǯ Their argument fails for several reasons.
Both wire and commodities fraud require as an element “a scheme ȱęȱ to defraud.” 18 U.S.C. §§ 1343 & 1348(1). ȱ ȱ ȱȱȱȱȱȱȱ only deceptive schemes where “money or property was an ” of the fraud. Ciminelli v. United States , 598 U.S. 306, 312 ǻŘŖŘřǼȱǻȱĴǼǯȱ Building on this, some circuits previously drew ȃȱęȱȱ ȱȱȱȱȱȱ than cause their victims to enter into transactions they would otherwise avoid” and “schemes that depend for their compleȱȱȱȱȱȱȱȱȱȱȬ gain.” United States v. Shellef ǰȱśŖŝȱ ǯřȱŞŘǰȱŗŖŞȱǻŘȱ ǯȱŘŖŖŝǼǯȱ In ȱǰȱ¢ȱȱĴȱ d a scheme to defraud that violated the fraud statutes. Id. ; United States v. Takhalov , ŞŘŝȱ ǯřȱŗřŖŝǰȱŗř 13–14 (11th Cir. 2016); United States v. Guertin ǰȱŜŝȱ ǯŚȱŚŚśǰȱŚśŗ –52 (D.C. Cir. 2023); United States v. Bruchhausen ǰȱ şŝŝȱ ǯŘȱ ŚŜŚǰȱ ŚŜŝ -69 (9th Cir. 1992). A scheme to Page 12defraud, they reasoned, requires ȱȱ the 'nature of the ȱǰȄȱȱ one concerning 'price' or 'characteristics of the good,” Takhalov ǰȱŞŘŝȱ ǯřȱȱŗřŗř –14, or some “exȱǽǾȄȱȱȱȱǰȱ Unit ȱ ȱǯȱ ĵ , 924 F.2d 410, 420 (2d Cir. 1991).
The defendants ask us to apply the essential element of the ȱ ȱ here. ȱ ęȱ ȱ market supply and demand, rather than the price or another characteristic of the futures contract itself, they contend that the other parties to the transaction 'received exactly what they paid for.” Takhalov ǰȱŞŘŝȱ ǯřȱȱŗřŗŚ ǻȱĴǼ . They liken ęȱȱȱȱȃȱ positions” in arm’s length transactions, which are not fraud. United States v. Weimert ǰȱŞŗşȱ ǯřȱřśŗǰȱřśŝȱǻŝȱ ǯȱŘŖŗŜǼǯȱ Ȭ ȱȱ¢ǰȱęȱ¢ȱ not amount to a scheme to defraud within the scope of the fraud statutes, even if the parties would not have otherwise executed the transaction.
ȱȱȱȱ¢ȱ¢ȱȱ ȱ Ȃȱȱȱ Kousisis v. United States , 145 S. Ct. 1382 (2025), which came down after oral argument in this case. There, the defendant had secured contracts with the Pennsylvania Department of Transportation to paint two projects in Philadelphia. Id. at 1388–89. He represented that he would acquire painting supȱ ȱ ȃȱ ęȱ ȱ ,” in ȱȱȱęȱȱȱȱȱȱ pass-through entity to funnel payments. Id. at 1389. The Court Ĝȱ the defendant’s wire fraud convictions and directly ȱȱȱȱȱȱ the defendants in this case invoke. Id. at 1390–92, 1398; see also United States v. Runner , 143 F.4th 146, 154– śśȱǻŘȱ ǯȱŘŖŘśǼȱǻ£ȱǼǯȱ ȱ wire fraud statute, the Court explained ǰȱ ȃȱ ȱ ȱPage 13 economic loss.” Kousisis , 145 S. Ct. at 1392. Rather, a fraud conviction can stand if the defendant did no more than “use[] a material misstatement to trick a victim into a contract that requires handing over her money or property.” Id. at 1388, 1391.
Because Kousisis forecloses the defendants' essential eleȱȱȱȱǰ ȱ¢ȱȱȱȱ wellȱȱȱęȱȱȱȱ to defraud within the meaning of the wire and commodities fraud statutes. United States v. Pacilio ǰȱ Şśȱ ǯŚȱ ŚśŖǰȱ ŚŜŖȱ ǻŝȱ Cir. 2023); United States v. Chanu , 40 F.4th 528, 541 ǻŝȱ ǯȱ 2022); United States v. Coscia , 866 F.3d ŝŞŘǰ ŝşŝ ǻŝȱ ǯȱŘŖŗŝǼ .
ȱȱȱȱ the defendants’ argument would fail even without Kousisis . Unlike the transactions in Kousisis or Weimert , where the defendants directly lied to the purported victims ǰȱȱȱȱęȱȱęȱȱȱ parties and the market as a whole. ęȱȱȱȬ ȱ ȱ ȱ ȱ ȱ ȱ — ȃ¢ȱȱȱȱȱȱȱȱȱȱȱ private intent to cancel.” Pacilio , 85 F.4th at 460. In this way, ęȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ d and fraud-on-the-market, ȱȱ¢ȱ ȱ Ȭ sentations that undermine the integrity of the marketplace. See United States v. Gilbertson ǰȱşŝŖȱ ǯřȱş 39 ǰȱşŚŝ (8th Cir. 2020) (in the context of securities fraud, the “gravamen of manipuȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ¢ȱȱȱȱȱȱȱ¢ȱȱ ȱ¢ȱȱ¢ȱȱǰȱȱȱ¢ȱȬ nipulators”) (qu ȱĴǼ .
The defendants also claim the fraud statutes are unconstitutionally vague as applied to their conduct. We have already Page 14rejected this argument, Pacilio , 85 F.4th at 460–61, and decline ȱȱȱǯȱ ȱǰȱ ȱęȱȱȬ ing violates the federal wire and commodities fraud statutes, 18 U.S.C. §§ 1343 & 1348(1).
ȱȱ ȱȱȱȱȱęȱȱȱ wire and commodities fraud (it does), the evidence cannot sustain their convictions ȱ¢ȱȱȱȱȱȱ practice. They ȱȱęȱȱȱȱ intent to cancel a ȱȱěȱȱ¡ǰȱ ȱȱ ȱȱȱǰȱȱǰ a conditional intent to cancel the orders ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ę . Smith and Nowak concede, as they must, that each of their convictions is predicated on the ȱ ęȱ ǰȱ meaning the convictions all stand or fall with the governȂȱ ¢ȱ ȱ ȱ ȱ ¢ȱ . ęȱ ȱ ¢ȱȱȱȱȱǰȱȱǰȱȱȱ Dodd-Frank Act provides that any person who knowingly violates its antięȱ ǰȱ ŝȱ ǯ ǯ ǯȱ ȗ 6c(a)(5)(C), is ¢ȱ ȱ Ĵȱ ȱ ȱ ȱ ŝȱ ǯ ǯ ǯȱ § 13(a)(2). According to Smith and Nowak, since the government cannot prove that they placed trade orders with the reqȱȱȱȱęȱǰȱ¢ȱ are entitled to a ȱȱĴȱȱȱǯȱ Though formally we ȱ ȱ ȱ ¢ȱ Ĵȱ ȱ ǰȱ ȃ¢ȱ Ȅȱȱȃȱȱ ȱȱȱȱĜ¢ȱȱ the evidence.' United States v. Peterson , 823 F.3d 1113, 1120 ǻŝȱ ǯȱŘŖŗŜǼ ; see also Rivers ǰȱŗŖŞȱ ǯŚȱȱşŝŞȱǻȱȱ ȱ for threshold legal questions).
ȱȱȱȱȱȱ¢ȱȱ the standard for intent and, frankly, we struggle to Page 15understand why. ȱȱ ȱ ȱȱĴȱȱȱȬ ȱǯȱ ȱȱȱȱ¢ȱȱęȱȱ an unconditional purpose to cancel the ȱȱȱě . The jury thus considered—and rejected—Smith and Nowak’s argument that the evidence does not show such unconditional intent. We measure intent at the moment the order was placed. Coscia ǰȱ ŞŜŜȱ ǯřȱȱŝşśȱǻȱȱȱęȱȬ quires proving that ȱȱȃ ¢ȱȱ ds or ěȱ ȱȱȱȱȱȱȱȱȱěȱȱȱ execution”). If a party possesses a conditional intent to trade, he necessarily lacks an intent to cancel at the time the order is placed. The word unconditional is redundant and unnecessary.
The key question ȱęȱȱ is whether an order is placed on the opposite side of the commodities market with ȱȱȱȱȱ¡ȱȱȱȱȱ the market. Chanu , 40 F.4th at 540. Even if Smith and Nowak waited to cancel the spoof orders until the legitimate trade was executed, what counts is that the trades “were designed ę¢ȱȱȱȱęǯȄȱ Coscia ǰȱ ŞŜŜȱ ǯřȱ ȱ ŝŞşǯȱ It ȱȱȱȱęȱȱ ȱ to cancel until his ȱ ȱ ȱ ę -that's the whole point of ęǯ Cf. id. (defendant's software program canceled ȱȱȃȱȱȱDZȱǻŗǼȱȱȱ the passage of time dzDzȱǻŘǼȱȱȱęȱȱȱȱDzȱ or (3) ȱęȱȱȱȱ ”) (emphasis added). The 'unconditional' semantics aside, the question is whether Smith’s and Nowak’s “purpose was not to trade on those orǰȱȱȱȱȱȱȱȱȱȱȱȱ ǯȄȱ Id. ȱŝşśȱǭȱǯŚśǯ
Page 16More importantly, all that Ĵ is whether a rational trier of fact could have come to that conclusion. Peterson , 823 F.3d at 1120 (“We consider the evidence in the light most faȱȱȱȱȱĜȱȱȱȱ¢ȱȬ ȱȱȱȱȱęȱȱȱ¢ȱ¢ȱȱ ȱǯȄǼǯ ȱȱȱȃ¢ȱ .” United States v. Sorensen ǰȱ ŗřŚȱ ǯŚȱ Śşřǰȱ ŚşŞȱ ǻŝȱ ǯȱ ŘŖŘśǼ ǻȱĴǼ . In particular, Smith and Nowak’s focus ȱȱȱȱȃȱ¢ȱ¢ǰȄȱȱȃȱȱ¢ȱȱ ȱȱȱȱȱȱ¢ȱȱȱ ǰȱȱȱȱȱĜ¢ȱȱȱȱȱ ȱȱ¡¢ȱĜȱȱ ǯȄȱ Pacilio , 85 F.4th at 463 (cleaned up).
ȱ ȱȱǰȱ ȱȱęȱȱȱ¢ȱ could have found Smith and Nowak placed spoof orders with the requisite intent to cancel. ȱȱȱȬ stantial data evidence depicting the scheme, and the jury heard extensive testimony from cooperating witnesses, ęȬ cial experts, and investigators supporting an inference of guilt. This evidence ȱȱ¢ȱȱȱ messages showing that Smith and Nowak placed (and then canceled) orders on the opposite side of the market from the legitimate orders that they intended to execute. Smith and Nowak argue that this evidence is all circumstantial, as the ȱ ęȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ mind. Even so, 'direct evidence of intent ȱȱĴǰȱ ȱęȱȱȱȱ¢ȱȱȱ¢ȱȬ ȱ ȱ ȱ ¢ȱ ȱ ȱ ȱ ¡ȱ the scheme itself.” Id. ȱŚŜŚȱǻȱĴǼǯȱ ǰȱ Smith and Nowak counter that the circumstantial evidence cannot support ȱ ȱ ȱ ȱ ȱ ¢ȱ Ȭ sistent with their innocence. But Smith and Nowak were free Page 17to argue to the jury that there were legitimate explanations for their trading Ĵȱ and to cross-examine the witnesses on ȱȱȱ¢ —indeed, that was the heart ȱȱȱȱȱǯȱ ȱ ȱȱȱǰȱȃȱ ȱȱȱ¡ȱȱȱ¡ … that were ¢ȱȱ ȱȱȱȱȱȱ¢ȱȱȬ lieve them.” United States v. Maxwell , 143 F.4th 844, 858 ǻŝȱ ǯȱŘŖŘśǼȱǻȱĴǼǯȱ ȱęȱȱȱĜȱ evidence to justify the jury’s conclusions.
Ě¢ǰȱ ȱȱ ȱ also challenge the antięȱ statute ǰȱŝȱ ǯ ǯ ǯȱȗ 6c(a)(5)(C), as void for vagueness. As with fraud, our precedent squarely forecloses this argument. Coscia , 866 F.3d at ŝşř –95. The ę statute is not unconstitutionally vague, and ample evidence supported Smith's and Nowak’s convictions under it.
ȱǰȱ ȱȱ ȂȱĜ¢ȱȱȱȱ challenge fails as to all convictions. There was more than sufęȱȱȱ ȱȱ ȱȱȱęȱ ȱ ȱ ȱ ŝȱ ǯ ǯ ǯȱ ȗ 6c(a)(5)(C). And ȱęȱ constitutes a scheme to defraud under the wire and commodities fraud statutes, 18 U.S.C. §§ 1343 & 1348(1), and amounts to Ĵȱȱǰȱŝȱ ǯ ǯ ǯȱȗ 13(a)(2), there was Ĝȱȱȱ¢ȱĴȱȱȱȱ . Because the jury's verdict is ȱ ¢ȱ ȱ Ȭ dence on all charges, they are not entitled to a new trial on these grounds either. Peterson , 823 F.3d at 1122; United States v. Conley ǰȱŞŝśȱ .3d 391, 399–400 ǻŝȱ ǯȱŘŖŗŝǼȱǻ when motions ȱĴȱȱȱȱ ȱȱȱȱȱȱȱȱ that the government failed to prove the elements of the ofȱ¢ȱȱȱǰȱ ȱ ȱĜȱȱȱȬ ęȱȱȱȱ¢ȱǼǯ
Page 18Smith and Nowak next ȱȱĴȱȱȱȱ court's decision to admit much of the evidence discussed . They claim the court’s rulings were erroneous and ask ȱȱȱȱĴȱȱȱ ȱȱȱȱǯȱ We ȱȱȱȂȱ¢ȱȱȱȱȱȱ discretion. Pacilio , 85 F.4th at 464. We will only reverse if we ȱȃȱ ȱȱęȱȱęȱȱȱȱȱ ȱ ȱ ĴǯȄȱ Id. ǻȱ ĴǼǯȱ Smith and Nowak assert that the ȱȱȱȱȱ¢ȱ ĴDZȱǻŗǼȱ¢ȱȱ¢ȱȱȱȱȬ ing witnesses, (2) Wika's lay opinion testimony, and (3) Wika’s investigative report.
ȱǰȱ ęȱȱ ȱ¢ȱȱȱȱ Ĵȱ ȱ rulings. Although the report and some of Wika’s ¢ȱȱę¢ȱȱ ǰȱ ȱȱęȱ ȱęȱȱ ȱȱȱ¢ǯȱ ¢ȱ in light of the joint conspiracy charge, even though this evidence focused on Smith, the jury could consider it against Nowak as relevant and in accordance with any limiting instructions. See United States v. Lopez ǰȱŜȱ ǯřȱŗŘŞŗǰȱŗŘŞŜȱǻŝȱ ǯȱ 1993) (in joint trials, juries will “sort through the evidence” and “follow instructions from the court” separate conȱȱǼǯȱ ȱȱ ȇȱȱȱ Wika's testimony and report and, importantly, did not receive or request a limiting instruction that the jury could only consider them against Smith.
Turning to the merits, none of these decisions was an ȱȱǯȱ ȱ ȱȱ ȱŝŖŗȱȱ¢ȱ witnesses to testify as to “their opinions and inferences, even ȱȱȱȱȱǯȄȱ United States v. Locke , 643Page 19 F. řȱŘřśǰȱŘřşȱǻŝȱ ǯȱŘŖŗŗǼǯȱ ¢ȱ¢ȱȱ¢ȱȱȬ other person’s mental state, so long as the testimony is helpful to the jury ȱ ȱŝŖŗȱ and appropriate under Rule 403’s ȱǯȱ Id. at 239–40. Though lay witnesses may not ěȱȱȱȱȱȱȱȱȱ¢ȱ elements, United States v. Noel ǰȱ śŞŗȱ ǯřȱ ŚşŖǰȱ ŚşŜȱ ǻŝȱ ǯȱ 2009), they can use words “in a colloquial sense” that “em¢ǽǾȱȱȱȱȱęȱǰȄȱȱȱ those words mirror legal standards, Locke , 643 F.3d at 241–42 (approving of lay witnesses’ use of the words fraud and misrepresentation).
The lay testimony was proper under this standard. Smith and Nowak take issue with the witnesses’ use of the word ęȱȱȱȱȱ¢ǰ argue that they im¢ȱ£ȱęȱȱȱȱȱȬ lation, and claim that the witnesses inappropriately opined on Smith’s and Nowak’s intent ȱȱȱ . But the witnesses’ ȱȱȱ ȱęȱ ȱȱ with the colloquial vernacular of the trading industry, id. at 242 ǰȱ ȱ¢ȱ¢ȱȱ 's and Nowak's mental states was properly framed as an opinion drawn from the trading data in light of the witnesses' own experience, see United States v. Winbush , 580 F. řȱśŖřǰȱśŗŘȱǻŝȱ ǯȱŘŖŖşǼǯȱ ȱ for the claim that the testimony improperly equated ęȱ with fraud and price manipulation, the witnesses were simply explaining why they spoofed, what they had pled guilty to, ȱ ǻȱ Ȃȱ Ǽȱ ¢ȱ ȱ ȱ ȱ ęǯȱ That Smith and Nowak declined a jury instruction that the witȱ ȱȱȱȱȱȱ¢ȱęȱȱȬ ȱȱȱȱȱȱǯ
Page 20Smith and Nowak also argue that Wika should have testięȱȱȱ¡ǰȱȱȱȱ¢ȱ ǯȱ Investigators such as Wika can ¢ȱ ȱ ȱȱ ȱ ȱ ȱ ȱ provide their impressions of the case without crossing into expert territory. United States v. Rollins , 544 F.3d 820, 832– řřȱǻŝȱ ǯȱŘŖŖŞǼǯȱ ȱȱȱȱȱȱȂȱ “specialized knowledge informed his mental state.” United States v. Oriedo ǰȱŚşŞȱ ǯřȱśşřǰȱŜŖŘȱǻŝȱ ǯȱŘŖŖŝǼǯȱ ȱȱ¢ȱ ȱȱ experience, Wika’s testimony was limited to his investigation and what it revealed to him. Even if it argu-¢ 'approaches the line dividing lay opinion testimony from expert opinion testimony,” this testimony remained adǰȱȱȱȱȱȱȱȱȱȱȱ allowing it. Rollins , 544 F.3d at 833. At the very worst, the government’s other evidence of Smith’s and Nowak’s guilt was so extensive that even if Wika’s testimony “had crossed the Ȅȱȱ ȱȱȱȱǯȱ Id. Nor was it erroneous to admit Wika’s investigative report: investigative reports may come in as ȱȱȱ ȱ ȱȱ Evidence 803(6) if ȱȱĜȱȱȱęȱ at trial, as Wika did. United States v. King ǰȱŜŗřȱ ǯŘȱŜŝŖǰȱŜŝŘ – ŝřȱǻŝȱ ǯȱŗşŞŖǼDzȱ United States v. Blackburn ǰȱşşŘȱ ǯŘȱŜŜŜǰȱŜŝŘȱ ǻŝȱ ǯȱŗşşřǼȱǻȃ ȱȱȱȱȱȱȱȱȱȱ for cross-examination, dzȱ Ĵȱ ȱ ȱ ȱ does not contravene Rule 803(8).”).
ȱȱęȱǰȱ ȱȱ ȱȱȱ the district court’s supplemental instructions to the jury were erȱȱ¢ȱǯȱ ȱ ȱȱȱ court’s decision to provide supplemental jury instructions, including its decision to read (or reread) a Silvern instruction,Page 21 ȱȱȱǯȱ United States v. Cardena , 842 F.3d 959, şŝŚȱǻŝȱ ǯȱŘŖŗŜǼȱ ( Silvern instruction); United States v. Sims , řŘşȱ ǯřȱşřŝǰȱşŚŘȱǻŝȱ ǯȱŘŖŖřǼȱǻȱȱ generally).
It was appropriate for the district court to reread the Silvern instruction. Silvern instructions are 'perfectly contentȱ ȱ ǽ¢Ǿȱ ȱ ȱ ȱ ȱ ȱ ȱ jury.” United States v. Beverly ǰȱşŗřȱ ǯŘȱřřŝǰȱřśŘȱǻŝȱ ǯȱŗşşŖǼ ǻȱ ĴǼ . Rather, the district court followed our ǰȱȱȱȱȱȱȱ instruction to a deadlocked jury. United States v. Collins , 223 F.3d 502, 508– Ŗşȱǻŝȱ ǯȱŘŖŖŖǼǯ
It was similarly within the court’s discretion to remind the jury that lawyers' statements are arguments, not evidence. ȱȱȱȱȱȱȱĴȱȱǰȱ despite Smith and Nowak's arguments to the contrary, crafted it carefully to avoid singling out the juror. The court also refused to ask the jury whether it remained deadlocked ǰȱ¢ȱȱȱ¢ȱȱȱȱȬ ations. Under the circumstances, the court proceeded thoughtfully and exercised its discretion wisely. Nowak and Smith may not like the verdict the jury reached after receiving ȱǰȱȱȱ not mean they were issued in error.
Recall that Jordan was convicted of only wire fraud under 18 U.S.C. § 1343. Jordan challenges various aspects of his sepȱǯȱ ȱȱȱǰȱ ȱęȱȱ ȱȱ ȱĜ¢ȱȱȱȱ claim. Jordan joined Smith ȱ ȂȱȱȱęȱȱȱȱȱPage 22 ȱȱȱȱȱȱȱȱȬ ȱȱȱȱǯȱ ȱ ȱȱȱ he spoofed, his argument hinges entirely on that theory. Since we rejected that argument in Section II.A ǰȱ ȂȱĜ¢ȱ of the evidence challenge is a nonstarter.
Jordan's primary remaining argument concerns the district court’s decision to exclude his statement to Agent Luca that he “did not think what he was doing was wrong.” Jordan sought to admit that statement under Federal Rule of Evidence 106, often referred to as the rule of completeness. Rule 106 provides that “[i]f a party introduces all or part of a statement, an adverse party may require the introduction, at that time, of any other part—or any other statement—that in fairȱȱȱȱȱȱȱȱǯȄȱ ¢ȱȃ¢ȱȱ s ȱȱȱ¢ȱǯȄȱ ǯȱ ǯȱ ǯȱŗŖŜǯ
Rule 106 requires a complete statement ' ȱ ȱ ȱ ȱ ȱ ȱȱȱ¢ȱȱǻŗǼȱ¡ȱȱĴȱǰȱ ǻŘǼȱȱȱĴȱȱȱ¡ǰȱǻřǼȱȱȱ the trier of fact, or (4) insure a fair and impartial understanding.” United States v. Lewis ǰȱ ŜŚŗȱ ǯřȱŝŝřǰȱŝŞśȱǻŝȱ ǯȱŘŖŗŗǼȱ ǻȱĴǼǯȱ In United States v. Haddad , 10 F.3d 1252 ǻŝȱ ǯȱŗşşřǼǰȱȱǰȱȱȱĴȱȱȬ Ȃȱǰȱȃ ǰȱ ȱ e ȱȱȱȄȱȱ¡ȱ the remainder that said, ȃȱ ȱȱȱ ȱȱȱǯȄȱ Id. at 1259. The gun was located right next to the marijuana, ȱȱĴȱȱȱȱȱȱ ȱ ȱȱȱȱ ǯȱ Id. We concluded that Rule 106 required the admission of the exculpatory statement, in part to avoid any misleading inference. Id. 'The completeness doctrine does not, however, require introduction of portions of a Page 23statement that are neither explanatory of nor relevant to the ĴȱǯȄȱ Lewis ǰȱ ŜŚŗȱ ǯřȱ ȱ ŝŞśȱ ǻ quoting United States v. Marin ǰȱŜŜşȱ ǯŘȱŝřǰȱŞŚȱǻŘȱ ǯȱŗşŞŘǼ ).
The district court was correct that Rule 106 did not compel it to admit Jordan’s statement. Jordan’s claim that he did not think he was doing anything wrong does not change the facȱȱȱȱȱȱȱȱȱ ȱȱȱ to cancel for the purpose of misleading the market. Nor does ȱȱȱ¢ȱ¢ȱȱȱȱȱȬ Ĵȱ DZȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ǰȱȱȱȱȱ ȱ ȱ ȱȱęȱ was illegal or, as he put it, wrong. United States v. Blagojevich , ŝşŚȱ ǯřȱ ŝŘşǰȱ ŝřşȱ ǻŝȱ ǯȱ ŘŖŗśǼǯȱ Rather, the court rightly noted that Jordan was free to take the stand and testify that he did not think he was doing anything wrong. United States v. Faruki ǰȱŞŖřȱ ǯřȱŞŚŝǰȱŞśŝȱǻŝȱ ǯȱŘŖŗśǼȱǻȱ ȱȱȬ trict court that “the appropriate vehicle for the introduction of ȱȱ ȱȱȱȱǽȱǾȱȱȱ have taken the stand,” rather than Rule 106). Defendants often try to justify their actions when speaking with FBI agents and ȱ ȱȱĜȱ¢ȱȱȱ . Such an exculpatory statement has nothing to do with Rule 106.
Next, Jordan claims ȱȱȱȱȱȱȬ ȱ¢ȱ excluding ȱ¡ȱ he sought to use for impeachment. The trial concerned Jordan's trading when he worked at JPMorgan and then Credit Suisse until August 2010. Although the policies in place at the time did not explic¢ȱȱęǰȱȱ ȱęȱȱ the practice ȱ ȱ ȱ ¢ȱ ȱ ǯ To Page 24controvert this testimony, Jordan moved to admit post-2010 ȱȱȱ ȱȱȱȱȱȬ ȱȱ¡¢ȱȱęǯȱ However, the district court excluded this evidence under Rule 403. The policies were reȱ ȱ Ěȱ ȱ -Frank Wall Street and Consumer ȱ ǰȱ . L. No. 111ŘŖřǰȱŗŘŚȱ ǯȱŗřŝŜǰȱ ȱ Ȭ ȱȱȱ ¢ȱŘŖŗŖǯȱ ȱęȱ¢ȱȱ the general wire fraud statutes, the Dodd-Frank Act amended ȱ ¢ȱ ¡ȱ ȱȱ¡¢ȱ£ȱęȱ as an unlawful disruptive practice amounting to price manipǯȱŝȱ ǯ ǯ ǯȱȗȗ 6c(a)(5)(C Ǽȱǻęȱęȱȱȱ ȃ¢ȱ ȱȱȱȄȱȱȃȱȱěȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ěȱ ȱ ¡ȄǼȱ ǭȱ ŗřǻǼǻŘǼǯȱ ȱȱǰȱȱȱȱȱȱ ěȱȱȱȱȱȱ g the jury and erroneously injecting a mistake of law defense into the case and excluded it.
ȱȱȱȱ¡ȱ ȱ ¢ȱ ȱ and directly responsive to the witnesses’ testimony, making the district court’s decision to exclude them under Rule 403 ȱȱȱǯȱ We disagree. Jordan conducted extensive cross-examination of the witnesses, which elicited clear testimony that the pre-2010 documents did not mention ęȱȱȱ¢ȱȱǻȱ¢ȱǼȱǯȱ The actual documents themselves were thus of limited addiȱȱǯȱ And as the district court noted, evidence of the after-the-fact, post-Dodd-Frank policies could have led the jury to think that the wire fraud statutes were not Ĝȱȱ£ȱęǯ ȱȱ ȱęȱȱ this concern—defendants in other cases have made this same ǻȱǼ argument. See Chanu , 40 F.4th at 534.
Page 25ȱȃǽǾȱȱȱȱȱȱȱ is a highly discretionary assessment,” we give “great deference” to a district court’s decision to exclude evidence under Rule 403 and “ ¢ȱǽǾȱȱȱȱȱȱȱ agree with the ruling.' Pacilio , 85 F.4th at 465 (quotation omitted). ȱȱȱȱȱȱȱȱȱ valid concerns of jury confusion, Jordan does not overcome this extremely deferential standard.
Last, Jordan says the district court erred in declining to administer a so-called good faith instruction ǯȱ ę¢ǰȱ ȱ sought an instruction that if he acted in good faith “then he ȱȱȱȱȱȱȱȱȱěȱȱ wire fraud.' Though we review challenges to jury instructions de novo, ȃȱȱȱȱěȱȱȬ cretion with respect to the precise wording of instructions so long ȱȱęȱǰȱȱȱȱ ǰȱ¢ȱȱȬ rectly states the law.” Chanu , 40 F.4th at 542 (cleaned up).
We already addressed and rejected this same argument in Chanu . As the district court noted, a good faith instruction is ¢ȱȱ ȱȱȱȱȱȱȱȱȱ is a part of the charge. Id. ȱśŚřǯȱ ȱȱǰȱȱȱȱ free to provide one if they wish. But “the rule is clear” that defendants such as Jordan cannot demonstrate that “the failure to include the good faith instruction denied [them] a fair trial.' Id. (cleaned up). ȱĴȱȱǰȱȱȱ¢ȱ convicted him of wire fraud after a fair, properly conducted trial.
AFFIRMED